Exhibit 4.7
INDEMNIFICATION AGREEMENT
among
XXXXXXXXXXX.XXX INC.,
PEOPLEFIRST FINANCE, LLC,
PF FUNDING II, LLC
and
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
Dated as of November 30, 1999
XxxxxxXxxxx.xxx Auto Receivables Owner Trust 1999-1
$56,000,000 6.415% Asset Backed Notes, Class A-1
$42,000,000 6.685% Asset Backed Notes, Class A-2
$18,000,000 6.835% Asset Backed Notes, Class A-3
TABLE OF CONTENTS
PAGE
Section 1. Definitions.........................................2
Section 2. Indemnification.....................................3
Section 3. Indemnification Procedures..........................4
Section 4. Contribution........................................4
Section 5. Miscellaneous.......................................5
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of November 30, 1999 among
XXXXXXXXXXX.XXX INC. ("Parent"), PEOPLEFIRST FINANCE, LLC (the "Company"), PF
FUNDING II, LLC (the "Transferor") and PRUDENTIAL SECURITIES SECURED FINANCING
CORPORATION (the "Depositor").
Section 1. Definitions. (a) For purposes of this Agreement, the following
terms shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Basic Documents" has the meaning assigned to such term in the Sale
and Servicing Agreement.
"Depositor Information" has the meaning provided in Section 2 hereof.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization or other organization or entity
(whether governmental or private).
"Preliminary Prospectus" means the Preliminary Prospectus dated
November 9, 1999, together with the Preliminary Prospectus Supplement dated
November 9, 1999 relating to the Securities.
"Prospectus" means collectively the Prospectus dated November 17,
1999, together with the Prospectus Supplement and the Preliminary Prospectus.
"Prospectus Supplement" means the Prospectus Supplement dated November
17, 1999 relating to the Securities.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of November 1, 1999 among the Trust, PF Funding II, LLC, PeopleFirst
Finance, LLC, the Depositor, and Norwest Bank Minnesota, National Association,
as Backup Servicer, Indenture Trustee and Custodian.
"Securities" means the Trust's $56,000,000 6.415% Asset Backed Notes,
Class A-1, $42,000,000 6.685% Asset Backed Notes, Class A-2 and $18,000,000
6.835% Asset Backed Notes, Class A-3, described in the Prospectus and issued
pursuant to the Indenture.
"Underwriting Agreement" means the Underwriting Agreement with respect
to the Securities and the Standard Provisions to the Underwriting Agreement,
each dated as of
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November 17, 1999, among the PF Entities, the Depositor and the Prudential
Securities Incorporated, as representative of the Underwriters.
(b) Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Underwriting Agreement.
Section 2. Indemnification.
(a) The Depositor agrees to indemnify and hold harmless each PF Entity and
each of its directors and each Person who controls any PF Entity within the
meaning of the 1933 Act or the 1934 Act, against any losses, claims, damages or
liabilities, joint or several, to which such PF Entity or such director or
controlling Person may become subject under the 1933 Act, the 1934 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus Supplement, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statements or
alleged untrue statements or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the PF Entities by
the Depositor specifically for use therein, and the Depositor will reimburse
each PF Entity and each such controlling Person for any legal or other expenses
reasonably incurred by such PF Entity or such director or controlling Person in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Depositor may otherwise have. Each PF Entity acknowledges
that the information under the headings "Summary of Terms-Depositor" and "The
Depositor" in the Prospectus Supplement (the "Depositor Information") constitute
the only information furnished to the PF Entities by or on behalf of the
Depositor for use in the Registration Statement or the Prospectus.
(b) Each of the PF Entities agrees (severally and not jointly) (A) to
indemnify and hold harmless the Depositor, and each of its directors and each
Person who controls the Depositor or any such person, within the meaning of the
1933 Act or the 1934 Act, against any losses, claims, damages or liabilities,
joint and several, to which the Depositor or such Person may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any ABS Term Sheets or Computational Materials furnished to
prospective investors or any Current Report or any amendment or supplement
thereof, the Prospectus, any amendment or supplement to the Prospectus, or the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission does not relate to the Underwriter Information or the Depositor
Information; this indemnity agreement will be in addition to any liability which
the PF Entities may otherwise have; and (B) to indemnify and to hold the
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Depositor harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Depositor may sustain in any way related to the failure of
any of the PF Entities to perform its duties in compliance with the terms of the
Basic Documents.
Section 3. Indemnification Procedures. Promptly after receipt by an
indemnified party under Section 2 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under Section 2, notify the indemnifying party in writing
of the commencement thereof, but the omission to so notify the indemnifying
party will not relieve the indemnifying party from any liability which the
indemnifying party may have to any indemnified party hereunder except to the
extent such indemnifying party has been prejudiced thereby. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under Section 2 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. The indemnifying party shall not be liable for the
expenses of more than one separate counsel.
Section 4. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 2 is for any reason held to be unavailable to or insufficient to hold
harmless an indemnified party under Section 2 above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof); provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by the PF Entities on the one hand,
and the Depositor on the other, from the offering of the Securities (taking into
account the portion of the proceeds of the offering realized by each), the PF
Entities' and the Depositor's relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate in the circumstances. The PF Entities and
the Depositor agree that it would not be equitable if the amount of such
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contribution were determined by pro rata or per capita allocation. For purposes
of this Section 4, each officer, each director and each person who controls the
Depositor within the meaning of the 1933 Act or 1934 Act shall have the same
rights to contribution as the Depositor, and each officer, each director, and
each person who controls any PF Entity within the meaning of the 1933 Act or the
1934 Act, shall have the same rights to contribution as such PF Entity.
Section 5. Miscellaneous.
(a) Notices. All notices and other communications provided for under this
Agreement shall be delivered to the address set forth below or to such other
address as shall be designated by the recipient in a written notice to the other
party or parties hereto:
If to the PF Entities: People First Finance LLC
000 Xxxx X Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No: (000) 000-0000
Confirm No: (000) 000-0000
If to the Depositor: Prudential Securities Secured Financing Corporation
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Group Head Asset-Backed Group
Facsimile No: 000-000-0000
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(c) Assignments. This Agreement may not be assigned by any party without
the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
(d) Amendments. Amendments of this Agreement shall be in writing signed by
each party hereto.
(e) Survival, Etc. The indemnity and contribution agreements contained in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Indemnifying Party, (ii)
the issuance of the Securities or (iii) any termination of this Agreement. The
indemnification provided in this Agreement will be in
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addition to any liability which the parties may otherwise have and shall in no
way limit any obligation of the parties to the Underwriting Agreement.
(f) Counterparts. This Agreement may be executed in counterparts by the
parties hereto, and all such counterparts shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
XXXXXXXXXXX.XXX INC.
By:
----------------------------------------
Name:
Title:
PEOPLEFIRST FINANCE, LLC
By:
----------------------------------------
Name:
Title:
PF FUNDING II, LLC
By:
----------------------------------------
Name:
Title:
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
By:
----------------------------------------
Name:
Title:
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